Rule 1.2. Scope of Representation and Allocation of

Scope of Representation and Allocation of

Authority Between Client and Lawyer

(a) Subject to paragraphs (c), (d), and (e), a lawyer shall

abide by a client’s decisions concerning the objectives of

representation and shall consult with the client as to the means

by which they are to be pursued. A lawyer may take such

action on behalf of the client as is impliedly authorized to carry

out the representation. A lawyer shall abide by a client’s

decision whether to offer or accept a settlement. In a criminal

case, the lawyer shall abide by the client’s decision, after

consultation with the lawyer, as to a plea to be entered,

whether to waive jury trial, whether the client will testify, and

whether to take an appeal.

(b) A lawyer’s representation of a client, including

representation by appointment, does not constitute an

endorsement of the client’s political, economic, social, or

moral views or activities.

(c) A lawyer may limit the scope of the representation if

the limitation is reasonable under the circumstances and the

client consents after consultation.

(1) If a written fee agreement is required by Rule 1.5, the

agreement shall describe the limitation on the representation.

(2) The lawyer shall discuss with the client whether a

written notice of representation should be provided to other

interested parties.

(3) An otherwise unrepresented person to whom limited

representation is being provided or has been provided in

accordance with this rule is considered to be unrepresented for

purposes of Rules 4.2 and 4.3 unless the opposing lawyer

knows of or has been provided with:

(A) a written notice stating that the lawyer is to

communicate only with the limited representation lawyer as to

the subject matter of the limited representation; or

(B) a written notice of the time period during which the

lawyer is to communicate only with the limited representation

lawyer concerning the subject matter of the limited

representation.

er

knows of or has been provided with:

(A) a written notice stating that the lawyer is to

communicate only with the limited representation lawyer as to

the subject matter of the limited representation; or

(B) a written notice of the time period during which the

lawyer is to communicate only with the limited representation

lawyer concerning the subject matter of the limited

representation.

(d) Except as provided in paragraph (f), a lawyer shall

not counsel or assist a client to engage in conduct if the lawyer

knows that the conduct is criminal or fraudulent or if the

lawyer chooses to remain deliberately ignorant as to whether

the conduct is criminal or fraudulent. For purposes of this

Rule, a lawyer is “deliberately ignorant” if the lawyer (1) is

aware of a high probability that the client is using or plans to

use the lawyer’s services to accomplish or facilitate a crime or

fraud and, acting with this awareness, (2) the lawyer

deliberately chooses not to pursue readily available means of

investigating this matter (3) for the purpose of avoiding

confirmation of the lawyer’s suspicions. A lawyer is not

“deliberately ignorant” if the lawyer’s failure to investigate is

the result of the lawyer’s honest belief, despite reasons to

suspect otherwise, that the client is not using or planning to use

the lawyer’s services to accomplish or facilitate a crime or

fraud. This paragraph does not prohibit a lawyer from

discussing the legality or potential legal consequences of any

proposed course of conduct with a client, nor does it prohibit a

lawyer from counseling or assisting a client to make a good-

faith effort to determine the validity, scope, meaning or

application of any law.

(e) When a lawyer knows that a client expects assistance

not permitted by the rules of professional conduct or other law,

the lawyer shall consult with the client regarding the relevant

limitations on the lawyer’s conduct.

ent, nor does it prohibit a

lawyer from counseling or assisting a client to make a good-

faith effort to determine the validity, scope, meaning or

application of any law.

(e) When a lawyer knows that a client expects assistance

not permitted by the rules of professional conduct or other law,

the lawyer shall consult with the client regarding the relevant

limitations on the lawyer’s conduct.

(f) A lawyer may counsel a client regarding Alaska’s

marijuana laws and assist the client to engage in conduct that

the lawyer reasonably believes is authorized by those laws. If

Alaska law conflicts with federal law, the lawyer shall also

advise the client regarding related federal law and policy.

COMMENT

Allocation of Authority between Client and Lawyer

Paragraph (a) confers upon the client the ultimate

authority to determine the purposes to be served by legal

representation, within the limits imposed by law and the

lawyer’s professional obligations. The decisions specified in

paragraph (a), such as whether to offer or accept a settlement,

must also be made by the client. See Rule 1.4 for the lawyer’s

duty to communicate with the client about such decisions.

With respect to the means by which the client’s objectives are

to be pursued, the lawyer shall consult with the client as

required by Rule 1.4 and may take action impliedly authorized

to carry out the representation.

On occasion, however, a lawyer and a client may disagree

about the means to be used to accomplish the client’s

objectives. Clients normally defer to the special knowledge

and skill of their lawyer with respect to the means to be used to

accomplish their objectives, particularly with respect to

technical, legal and tactical matters. Conversely, lawyers

usually defer to the client regarding such questions as the

expense to be incurred and concern for third persons who

might be adversely affected

ent’s

objectives. Clients normally defer to the special knowledge

and skill of their lawyer with respect to the means to be used to

accomplish their objectives, particularly with respect to

technical, legal and tactical matters. Conversely, lawyers

usually defer to the client regarding such questions as the

expense to be incurred and concern for third persons who

might be adversely affected. Because of the varied nature of

the matters about which a lawyer and client might disagree and

because the actions in question may implicate the interests of a

tribunal or other persons, this Rule does not prescribe how

such disagreements are to be resolved. Other law, however,

may be applicable and should be consulted by the lawyer. The

lawyer should also consult with the client and seek a mutually

acceptable resolution of the disagreement. If such efforts are

unavailing and the lawyer has a fundamental disagreement

with the client, the lawyer may withdraw from the

representation. See Rule 1.16(b)(4). Conversely, the client may

resolve the disagreement by discharging the lawyer. See Rule

1.16(a)(3).

At the outset of a representation, the client may authorize

the lawyer to take specific action on the client’s behalf without

further consultation. Absent a material change in circum-

stances and subject to Rule 1.4, a lawyer may rely on such an

advance authorization. The client may, however, revoke that

authority at any time.

In a case in which the client appears to be suffering

impaired capacity, the lawyer’s duty to abide by the client’s

decisions is to be guided by reference to Rule 1.14.

Independence from Client’s Views or Activities

Legal representation should not be denied to a person

whose cause is controversial or the subject of popular

disapproval. By the same token, representing a client does not

constitute approval of the client’s views or activities

ing

impaired capacity, the lawyer’s duty to abide by the client’s

decisions is to be guided by reference to Rule 1.14.

Independence from Client’s Views or Activities

Legal representation should not be denied to a person

whose cause is controversial or the subject of popular

disapproval. By the same token, representing a client does not

constitute approval of the client’s views or activities.

Agreements Limiting Scope of Representation

The objectives or scope of services provided by a lawyer

may be limited by agreement or by the terms under which the

lawyer’s services are made available to the client. For

example, a retainer may be for a specifically defined purpose.

Representation provided through a legal aid agency may be

subject to limitations on the types of cases the agency handles.

When a lawyer has been retained by an insurer to represent an

insured, the representation may be limited to matters related to

the insurance coverage. The terms upon which representation

is undertaken may exclude specific objectives or means. Such

limitations may exclude objectives or means that the lawyer

regards as repugnant or imprudent.

Although this Rule affords the lawyer and client

substantial latitude to limit the representation, the limitation

must be reasonable under the circumstances. An agreement for

a limited representation does not exempt a lawyer from the

duty to provide competent representation, although the

limitation is a factor to be considered when determining the

legal

knowledge,

skill,

thoroughness

and

preparation

reasonably necessary for the representation. See Rule 1.1.

All agreements concerning a lawyer’s representation of a

client must accord with the Rules of Professional Conduct and

other law. See, e.g., Rules 1.1, 1.8 and 5.6 and COMMENT to

Rule 1.3, paragraph 3.

Criminal, Fraudulent and Prohibited Transactions

A lawyer is required to give an honest opinion about the

actual consequences that appear likely to result from a client’s

conduct

e Rule 1.1.

All agreements concerning a lawyer’s representation of a

client must accord with the Rules of Professional Conduct and

other law. See, e.g., Rules 1.1, 1.8 and 5.6 and COMMENT to

Rule 1.3, paragraph 3.

Criminal, Fraudulent and Prohibited Transactions

A lawyer is required to give an honest opinion about the

actual consequences that appear likely to result from a client’s

conduct. The fact that a client uses a lawyer’s advice in a

course of action that is criminal or fraudulent does not, of

itself, make the lawyer a party to the course of action. There is

a critical distinction between presenting an analysis of legal

aspects of questionable conduct and recommending the means

by which a crime or fraud might be committed with impunity.

But a lawyer must not assist a client in conduct that is criminal

or fraudulent when the lawyer knows that the conduct is

criminal or fraudulent or when the lawyer chooses to remain

deliberately ignorant of this fact.

To constitute “deliberate ignorance,” the lawyer’s

decision not to investigate must be motivated by the lawyer’s

conscious goal of avoiding further knowledge that might

confirm the lawyer’s suspicions that the client is engaged in a

crime or fraud. This means that a lawyer is not “deliberately

ignorant” if the lawyer’s failure to investigate is the result of

the lawyer’s honest belief, despite reasons to suspect

otherwise, that the client is not using or planning to use the

lawyer’s services to accomplish or facilitate a crime or fraud.

Likewise, a lawyer does not act with “deliberate ignorance” if

the lawyer does undertake a reasonable investigation and,

based on this investigation, the lawyer concludes in good faith

that the client is not using the lawyer’s services to commit or to

further a crime or fraud.

The concept of deliberate ignorance differs in important

ways from the lesser standards of negligence and recklessness

kewise, a lawyer does not act with “deliberate ignorance” if

the lawyer does undertake a reasonable investigation and,

based on this investigation, the lawyer concludes in good faith

that the client is not using the lawyer’s services to commit or to

further a crime or fraud.

The concept of deliberate ignorance differs in important

ways from the lesser standards of negligence and recklessness.

To constitute deliberate ignorance, the lawyer’s duty of inquiry

must be triggered by the lawyer’s awareness of a “high

probability” — a high likelihood — that the client is using the

lawyer’s services (or planning to use the lawyer’s services) to

accomplish or facilitate a crime or fraud. A lawyer is not

“deliberately ignorant” if the lawyer simply acts negligently —

i.e., if the lawyer fails to perceive a substantial risk of illegal

activity that a reasonable lawyer would have perceived.

Even when a lawyer reasonably believes that the client is

using (or planning to use) the lawyer’s services to accomplish

or facilitate a crime or fraud, this reasonable belief, standing

alone, does not mean that the lawyer acts with “deliberate

ignorance” if the lawyer decides to continue representing the

client. In such situations, Rule 1.16(b)(2) declares that a

lawyer has the right, but not the duty, to terminate the

representation. The lawyer’s decision to continue representing

the client does not constitute “deliberate ignorance” of the

client’s crime or fraud unless (1) the facts giving rise to the

lawyer’s reasonable belief are so compelling that the lawyer is

aware of a “high probability” that the client is using the

lawyer’s services for illegal purposes, and (2) the lawyer’s

failure to investigate further is motivated by the lawyer’s

conscious goal of avoiding confirmation of the lawyer’s

suspicions

ignorance” of the

client’s crime or fraud unless (1) the facts giving rise to the

lawyer’s reasonable belief are so compelling that the lawyer is

aware of a “high probability” that the client is using the

lawyer’s services for illegal purposes, and (2) the lawyer’s

failure to investigate further is motivated by the lawyer’s

conscious goal of avoiding confirmation of the lawyer’s

suspicions. In short, “reasonably believes” is the standard that

triggers a lawyer’s right of permissive withdrawal under Rule

1.16(b)(2), while “knowledge” or “deliberate ignorance” is the

standard that triggers a duty of mandatory withdrawal under

Rule 1.16(a)(1).

If a duty of investigation is triggered under paragraph (d)

of this Rule, the reasonableness of the lawyer’s investigation

will depend on the degree of risk that the client is using or

seeking to use the lawyer’s services to commit or further a

crime or fraud. In evaluating this level of risk, a lawyer may

reasonably consider

•

the identity of the client (i.e., whether the client is a

natural person or an entity — and, if an entity, the

identity of the directors and/or beneficial owners of

that entity),

•

the lawyer’s experience and familiarity with the

client,

•

the nature of the legal services that the client is

requesting,

•

the identity and reputation of the jurisdictions

involved in the representation (e.g., whether that

jurisdiction is known to be linked to money

laundering or terrorist financing), and

•

the identities of the people or entities who are

depositing funds into, or who are receiving funds

from, the lawyer’s trust account or other accounts in

which client funds are held

lient is

requesting,

•

the identity and reputation of the jurisdictions

involved in the representation (e.g., whether that

jurisdiction is known to be linked to money

laundering or terrorist financing), and

•

the identities of the people or entities who are

depositing funds into, or who are receiving funds

from, the lawyer’s trust account or other accounts in

which client funds are held.

For further guidance in assessing the risk that a client is

using a lawyer’s services to commit or further acts of money

laundering or a scheme to finance terrorism, a lawyer may

consult resources such as the Financial Action Task Force

Guidance for a Risk-Based Approach for Legal Professionals,

the American Bar Association’s Voluntary Good Practices

Guidance for Lawyers to Detect and Combat Money

Laundering and Terrorist Financing, A Lawyer’s Guide to

Detecting and Preventing Money Laundering (a collaborative

publication of the International Bar Association, the American

Bar Association, and the Council of Bars and Law Societies of

Europe), the Organization for Economic Cooperation and

Development’s Due Diligence Guidance for Responsible

Business Conduct, and the U.S. Treasury Department’s list of

“Specially Designated Nationals and Blocked Persons,” and

similar legal resources, as they may be updated and amended.

When the client’s criminal or fraudulent course of action

has

already

begun

and

is

continuing,

the

lawyer’s

responsibility is especially delicate. The lawyer is not

permitted to reveal the client’s wrongdoing, except when

permitted by Rule 1.6. However, the lawyer is required to

avoid furthering the client’s unlawful purpose—for example,

by suggesting how the crime or fraud might be concealed. A

lawyer must not continue assisting a client in conduct that the

lawyer originally supposed was legally proper but then

discovers is criminal or fraudulent

not

permitted to reveal the client’s wrongdoing, except when

permitted by Rule 1.6. However, the lawyer is required to

avoid furthering the client’s unlawful purpose—for example,

by suggesting how the crime or fraud might be concealed. A

lawyer must not continue assisting a client in conduct that the

lawyer originally supposed was legally proper but then

discovers is criminal or fraudulent. Withdrawal from the

representation,

therefore,

may

be

required

by

Rule

1.16(a)(1)(A), and remedial measures may be required by Rule

4.1.

Where the client is a fiduciary, the lawyer may have

special duties to a beneficiary. See Rule 4.1.

Paragraph (d) of this Rule applies whether or not the

defrauded party is a party to the transaction. However,

paragraph (d) does not preclude undertaking a criminal defense

incident to a general retainer for legal services to a lawful

enterprise.

The last clause of paragraph (d) recognizes that

determining the validity or proper interpretation of a statute or

regulation may require a course of action involving

disobedience of the statute or regulation or of the interpretation

placed upon it by governmental authorities.